79-29-209 - Merger of limited liability company.
§ 79-29-209. Merger of limited liability company.
(1) Unless otherwise provided in the certificate of formation or limited liability company agreement, one or more domestic limited liability companies may merge with a domestic or foreign entity pursuant to a plan of merger.
(2) A domestic or foreign entity may be a party to the merger, or may be created by the terms of the plan of merger, only if:
(a) The merger is permitted by the laws under which the entity is organized or by which it is governed; and
(b) In effecting the merger, the entity complies with such laws and with its organizational documents.
(3) The plan of merger must include:
(a) The name of each entity that will merge and the name of the entity that will be the survivor of the merger;
(b) The terms and conditions of the merger;
(c) The manner and basis of converting the interests of each merging entity into shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property, or any combination of the foregoing;
(d) The organizational documents of any entity to be created by the merger, or if a new entity is not to be created by the merger, any amendments to the survivor's organizational documents; and
(e) Any other provisions required by the laws under which any party to the merger is organized or by which it is governed, or by the organizational documents of any such party.
(4) The terms described in subsections (3)(b) and (3)(c) of this section may be made dependent on facts ascertainable outside the plan of merger, provided that those facts are objectively ascertainable. The term "facts" includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the limited liability company.
(5) The plan of merger may also include a provision that the plan may be amended prior to filing the certificate of merger with the Secretary of State, provided that if the members of a domestic limited liability company that is a party to the merger are required or permitted to vote on the plan, the plan must provide that subsequent to approval of the plan by such members the plan may not be amended to:
(a) Change the amount or kind of shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, or other property to be received by the owners of interests in any party to the merger upon conversion of their interests under the plan;
(b) Change the organizational documents of any other entity that will survive or be created as a result of the merger; or
(c) Change any of the other terms or conditions of the plan if the change would adversely affect such members in any material respect.
Sources: Laws, 1994, ch. 402, § 21; Laws, 1997, ch. 418, § 36; Laws, 2000, ch. 469, § 44, eff from and after July 1, 2000.